SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 416.1 Evidence of Uncharged Conspiracy: Title And Identification Of Parties
F 416.2 Evidence of Uncharged Conspiracy: Tailoring To Facts: Persons, Places, Things And Theories
F 416.3 Evidence of Uncharged Conspiracy: Language That Is Argumentative, Confusing, Etc.
TABLE OF CONTENTS
F 416.1 EVIDENCE OF UNCHARGED CONSPIRACY: TITLE AND IDENTIFICATION OF PARTIES
F 416.1 Inst 1 Evidence Of Uncharged Conspiracy—Title
F 416.1 Inst 2 Identification Of Prosecution And Defendant
F 416.2 EVIDENCE OF UNCHARGED CONSPIRACY: TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES
F 416.2 Inst 1 Aiding And Abetting: Tailoring To Defendant And Perpetrator
F 416.3 EVIDENCE OF UNCHARGED CONSPIRACY: LANGUAGE THAT IS ARGUMENTATIVE, CONFUSING, ETC.
F 416.3 Inst 1 Instructions Should Not Assume A Conspiracy Has Been Proven
F 416.3 Inst 2 Improper To Instruct That Agreement May Be Inferred From Conduct Indicating A “Common Purpose”
F 416.3 Inst 3 Improper Assumption Of Membership
F 416.3 Inst 4 Improper Argumentative And Duplicative Reference To Matters Which The Prosecution Does “Not Have To Prove”
F 416.3 Inst 5 Reference To “Formal” And “Detailed” As Erroneous And Vague
F 416.3 Inst 6 Reference To Perpetrator As “Alleged” Or By Name
F 416.3 Inst 7 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
Return to Series 400 Table of Contents.
F 416.1 Evidence of Uncharged Conspiracy: Title And Identification Of Parties
F 416.1 Inst 1 Evidence of Uncharged Conspiracy—Title
See generally FORECITE F 200.1.2 Note 2; CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 416.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 416.2 Evidence of Uncharged Conspiracy: Tailoring To Facts: Persons, Places, Things And Theories
F 416.2 Inst 1 Aiding And Abetting: Tailoring To Defendant And Perpetrator
See FORECITE F 400.2 Inst 2.
F 416.3 Evidence of Uncharged Conspiracy: Language That Is Argumentative, Confusing, Etc.
F 416.3 Inst 1 Instructions Should Not Assume A Conspiracy Has Been Proven
See FORECITE F 415.3 Inst 2.
F 416.3 Inst 2 Improper To Instruct That Agreement May Be Inferred From Conduct Indicating A “Common Purpose”
See FORECITE F 415.3 Inst 2.
F 416.3 Inst 3 Improper Assumption Of Membership
See FORECITE F 415.3 Inst 3.
F 416.3 Inst 4 Improper Argumentative And Duplicative Reference To Matters Which The Prosecution Does “Not Have To Prove”
*Modify CC 416, paragraph 4, sentence 2, as follows [deleted language is stricken]:
The People do not have to prove that any of the members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit (that/one or more of those) crime[s].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Deletion Of Argumentative And Duplicative Language – Instructing the jurors as to specific matters which the prosecution does “not have to prove” is argumentative and duplicative. Moreover, CALCRIM 415 does not cite any authority in support of the language it employs.
a. Instructions Should Not Be Given If They Are “Aimed At Specific Evidence” – The above instruction should not be given because it is “aimed at specific evidence,” the impact of which is a matter for argument of counsel. (People v. Harris (1989) 47 C3d 1047, 1098 fn. 31.)
b. Argumentative Instructions Are Improper – Even if judicial comment does not directly express an opinion about the defendant’s guilt, an instruction that is one-sided or unbalanced violates the defendant’s federal constitutional rights under the Fifth, Sixth and Fourteenth Amendments to due process and a fair, impartial trial by jury. (See Starr v. U.S. (1894) 153 US 614, 626 [14 SCt 919; 38 LEd 841] [trial judge must use great care so that judicial comment does not mislead and “especially that it [is] not … one-sided”]; see also Quercia v. U.S. (1933) 289 US 466, 470 [53 SCt 698; 77 LEd 1321]; U.S. v. Laurins (9th Cir. 1988) 857 F2d 529, 537 [judge’s comments require a new trial if they show actual bias or the jury “perceived an appearance of advocacy or partiality”].)
The Constitution not only gives a criminal defendant a right to have the jury determine his guilt of every element of a crime for which he is charged, but also to have the trial before an impartial judge and jury. (U.S. v. Fuller (4th Cir. 1998) 162 F3d 256, 259; see also U.S. v. Gaudin (1995) 515 US 506, 514-15 [115 SCt 2309; 132 LEd2d 444]; Gray v. Mississippi (1987) 481 US 648, 668 [107 SCt 2045; 95 LEd2d 622]; Tumney v. Ohio (1927) 273 US 510, 535 [47 SCt 437; 71 LEd 749].)
“Instructions must not, therefore, be argumentative or slanted in favor of either side [the instructions] should neither ‘unduly emphasize the theory of the prosecution, thereby de-emphasizing proportionally the defendant’s theory’ … nor overemphasize the importance of certain evidence or certain parts of the case.” (U.S. v. McCracken (5th Cir. 1974) 488 F2d 406, 414; see also U.S. v. Neujahr (4th Cir. 1999) 173 F3d 853; U.S. v. Dove (2nd Cir. 1990) 916 F2d 41, 45; State v. Pecora (MT 1980) 619 P2d 173, 175 [in prosecution for sexual intercourse without consent, giving instruction, which related to resistance required in order to prove lack of consent and was argumentative and commented on the evidence].)
Both state and federal decisions have long recognized that instructions “of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence are impermissible,” on the basis that such an instruction is argumentative. (People v. Gordon (1990) 50 C3d 1223, 1276, citing People v. Wright (1988) 45 C3d 1126, 1135-1138; see also Quercia v. United States, supra, 289 US166 [77 LEd 1321; 53 SCt 698].)
[See also FORECITE PG III(B); F 362 Note 6; F 372 Note 10.]
c. Instruction Which Tell The Jury What Does Not Need To Be Proved Is Argumentative – The jurors’ only function is to decide whether the elements of the charge have been proved beyond a reasonable doubt. (See In re Winship (1970) 397 US 358, 363 [90 SCt 1068; 25 LEd2d 368]; see also FORECITE F 104.1 Inst 1.) So long as the jurors are properly instructed on this duty and the required elements, any instruction on elements or facts not required to be decided is superfluous.
Moreover, by commenting on specific evidentiary matters which need not be proved, the judge is effectively arguing the case on behalf of the prosecutor. Hence, such an instruction is improperly argumentative. (See People v. Lightsey (2012) 54 CA4th 668, 720 [defense alibi instruction was properly refused as “argumentative and repetitious” because it attempted to emphasize that “defendant bore no burden to prove his alibi.”].) The trial judge should not become an advocate in the guise of instructing the jury. (People v. Cummings (1993) 4 CA4th 1233, 1305.) The comments of the judge must be fair, objective and impartial. (People v. Moore (1974) 40 CA3d 56, 65.) As our Supreme Court has made clear, “a trial court that chooses to comment to the jury must be extremely careful to exercise its power ‘with wisdom and restraint and with a view to protecting the rights of the defendant.’” (People v. Cook (1983) 33 CA3d 400, 408.) “[J]udicial comment should be temperate rather than argumentative and the trial court must avoid engaging in partisan advocacy.” (Id.; see also People v. Wright (1988) 45 CA3d 1126, 1136.)
d. Telling The Jury What Does Not Have To Be Proved Is Improperly Duplicative – A court should not give an instruction which “merely duplicates other instructions.” (People v. Bolden (2002) 29 CA4th 515, 558; see also, e.g., People v. Lightsey, supra, 54 CA4th at 720; People v. Garceau (1993) 6 CA4th 140, 191 [no error in refusing to give a special instruction that would have cautioned the jury to examine with greater care the testimony of an informer, for the jury received adequate standard instructions on the credibility of witnesses]; People v. Harrison (2005) 35 CA4th 208, 253.)
Since the jury has already been instructed on what must be proven, further instruction on what need not be proven is duplicative. (People v. Lightsey, supra, 54 CA4th at 720.)
e. Stating That A Fact Need Not Be Proved Improperly Diminishes The Weight Of The Evidence – Moreover, instruction that a matter need not be proven improperly implies that the evidence should be given no weight at all. (Cf., People v. Garceau (1993) 6 C4th 140, 193 [improper for an instruction to imply the weight to be given to specific evidence].) Even if a fact does not need to be proven as an element of the offense, it may still be relied upon by the defense. (See, e.g., Martin v. Ohio (1987) 480 US 228 [94 LEd2d 267; 107 SCt 1098].)
The defendant must be given a meaningful opportunity to present a defense. (See California v. Trombetta (1984) 467 US 479, 485 [104 SCt 2528; 81 LEd2d 413]; see also FORECITE CG 4.5.) Moreover, due process requires that instructions be fair and balanced as between the defense and prosecution. (See Wardius v. Oregon (1973) 412 US 470 [37 LEd2d 82; 93 SCt 2208]; see also FORECITE CG 6.5.) Commenting that certain matters need not be proven by the prosecution without also commenting that such matters may still be considered in favor of the defense unfairly favors the prosecution over the defense.
f. Instruction On Matters That Do Not Need To Be Proved May Confuse And Mislead The Jurors – “‘Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.’ [Citation.]” (People v. Williams (1995) 40 CA4th 446, 457; see also People v. DeFrance (2008) 167 CA4th 486.)
However, instructing the jurors on what does not need to be proved often involves “splitting hairs” and/or by providing nuanced distinctions which may be confusing to the average juror. For example, an element of conspiracy is an agreement by two or more persons to commit a crime. On the other hand, CC 416 states that the members need not come “to a detailed or formal agreement. . . .” This distinction between a conspiratorial agreement and a “detailed or formal agreement” is likely to unnecessarily confuse the jurors. (See also CC 1122 [offense requires conduct which would “without hesitation” have disturbed, irritated, etc. a “normal person” but the instruction also states that the person need not “actually be irritated or disturbed”].)
Accordingly, the judge should refuse such instructions on the basis that they provide confusing and/or contradictory definitions of an element of the charged offense. The judge may properly refuse an instruction that is confusing. (See People v. Moon (2005) 37 C4th 1, 30; People v. Lee (1987) 43 C3d 666, 673-74; see also Baldwin v. Blackburn (5th Cir. 1981) 653 F2d 942, 949 [misleading and confusing instructions under state law may violate due process where they are “likely to cause an imprecise, arbitrary or insupportable finding of guilt”].)
g. Case Law Response – People v. Flores (2007) 157 CA4th 216 erroneously concluded that comments about what the prosecution does not need to prove is not argumentative because “[t]he subject instruction did not specify items of evidence, identify witnesses, or in any way favor the prosecution over the defense.” (157 CA4th at 220, internal citations and quotation marks omitted.)
This conclusion is faulty because it fails to recognize that a comment on the lack of evidence can be just as argumentative as comment on specific items of evidence. Moreover, the court is plainly wrong in its assertion that the instructional language did not “favor the prosecution over the defense.” There simply is no reasonable basis upon which to conclude that telling the jury what one party does not need to prove is neutral as to both parties.
No Reference To “The People” – The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization – To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CAVEAT AND STRATEGY NOTE – Objection to specific instructions on matters which the prosecution does not have to prove may open the door, in the judge’s view, to prosecutorial objection to specific evidence instructions on matters which are not alone sufficient to prove guilt. (See listing of such instructions at PG XI(D)(2).) Although the considerations should be different due to the presumptions of innocence (see, e.g., FORECITE F 100.1 Inst 1), the judge may not see it this way. In this light, an alternative approach could be a request that the instruction be balanced and clarified to assure the jurors do consider the specified matter in determining whether the prosecution has proven all essential facts and elements of the charged offense. (See FORECITE F 416.3 Inst 7.)
Additionally, if the judge rejects a defense request to delete or balance argumentative language that favors the prosecution, this may provide a basis for requesting argumentative language favoring the defendant in another instruction. [See generally FORECITE F 416.3 Inst 4.]
STRATEGY NOTE RE: FLORES – To the extent that the conclusions of cases such as People v. Flores (2007) 157 CA4th 216, 220 are upheld, defense counsel may wish to consider requesting similarly worded instructions regarding matters which the defendant does not need to prove. For example, under the reasoning of Flores the defense should have the right to an instruction that rejection or disbelief of a defense witness is not sufficient to convict. (See FORECITE F 100.1 Inst 1 [Defense Has No Obligation To Prove Anything]; F 103.4 Inst 4 [Rejection Or Disbelief Of Defense Evidence Does Not Satisfy The Prosecution’s Burden Of Proof]; see also, e.g., F 103.4 Inst 6 [Duty To Presume Defendant Innocent: No Necessity For Defendant To Produce Evidence].)
Furthermore, if Flores is correct, then as to issues where the defense has the burden of proof, the defense should have the right to instructions which specify matters that it need not prove.
F 416.3 Inst 5 Reference To “Formal” And “Detailed” As Erroneous And Vague
*Modify CC 415 paragraph 4, sentence 2, as follows [deleted language is stricken]:
The People do prosecution does not have to prove that any of the members of the alleged conspiracy actually met or came to an detailed or formal agreement to commit (that/one or more of those) crime[s].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Right To Instructional Balance—Assuming paragraph 4, sentence 3 is not deleted (but see FORECITE 416.3 Inst 4), it should be modified as set forth above. The terms “detailed“ and “formal“ are vague and potentially misleading. Whether or not an agreement is “detailed“ or “formal“ are subjective and relative questions. Moreover, for purposes of conspiracy, the agreement must be sufficiently formal for the parties to have a “meeting of the minds“ and a specific objective. (See FORECITE F 415.5 Inst 6.) What is required is an “agreement“ (People v. Horn (1974) 12 C3d 290) and it is problematic to further describe the nature of such agreement.
No Reference To “The People“—The defendant objects to use of the term “the People“ in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 416.3 Inst 6 Reference To Perpetrator As “Alleged” Or By Name
See FORECITE F 400.2 Inst 1.
F 416.3 Inst 7 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
*Add after CC 416, paragraph 5, sentence 2:
Alternative a [fact not disputed]:
However, the fact that the members of the alleged conspiracy did not actually meet or come to a detailed or formal agreement to commit (that/one or more of those) crime[s] is a circumstance to consider in evaluating whether the prosecution has proved [all the elements of the conspiracy] [_________________<insert specific element to which the evidence relates; e.g., whether the defendant knowingly and intentionally entered into a conspiratorial agreement>.]
Alternative b [fact disputed]:
However, whether or not the members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit (that/one or more of those) crime[s] is a circumstance to consider in evaluating whether the prosecution has proved [all the elements of the conspiracy] [___________________<insert specific element to which the evidence relates; e.g., that the defendant knowingly and intentionally entered into a conspiratorial agreement>].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Matters Not Necessary To Prove: Need For Balance—If the jurors are instructed on specific factual matters which the prosecution does not need to prove (but see FORECITE F 416.4 Inst 3), then the instruction should be balanced and clarified to assure the jurors fully consider the specified matter in deciding whether the prosecution has proven all essential facts and elements of the charged offense. The CALCRIM instruction that this matter need not be proved improperly implies that this evidence has no weight or bearing on the material issues before the jury. (See People v. Garceau (1993) 6 CA4th 140, 193 [improper for an instruction to imply the weight to be given to specific evidence]; Martin v. Ohio (1987) 480 US 228 [94 LEd2d 267; 107 SCt 1098].)
In point of fact, the specific evidence upon which the CALCRIM comments is relevant and material. For example, the fact that the defendant and alleged co-conspirator never met—while not dispositive of the issue—certainly is relevant on the question of whether the defendant entered into a conspiratorial agreement with that person.
Even if a fact does not need to be proven as an element of the offense, it may still be relied upon by the defense. (See, e.g., Martin v. Ohio, 480 US 228.) The implication that such evidence is not relevant or material undermines the defendant’s right to a meaningful opportunity to present a defense. (See California v. Trombetta (1984) 467 US 479, 485 [104 SCt 2528; 81 LEd2d 413].) [See also FORECITE CG 4.5.]
Also, without the requested balancing language the CALCRIM instruction will improperly favor the prosecution in violation of the requirement that the instructions be balanced otherwise the instruction will be improperly argumentative. (See Cool v. United States (1972) 409 US 100, 103 fn.4 [34 LEd2d 335; 93 SCt 354] [reversible error to instruct jury that it may convict solely on the basis of accomplice testimony but not that it may acquit based on the accomplice testimony]; People v. Moore (1954) 43 CA2d 517, 526-27 [275 P2d 485] [“There should be absolute impartiality as between the People and the defendant in the matter of instructions”]; Reagan v. United States (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709]; see also Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].)
In sum, commenting that certain matters need not be proven by the prosecution without also commenting that such matters may still be considered in favor of the defense unfairly and unconstitutionally skews the trial in favor of the prosecution. Accordingly, the above instructional request should be granted.
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases, additional federal claims should be added, including, but not limited to, those in FORECITECG 13.